8.  The applicant was born in 1969 and lives in Krostitz, Germany.
9.  He is the father of the child Christofer, born out of wedlock on 25 August 1999 in Leipzig.
10.  The applicant met the child's mother, (Ms M.) in 1997. In 1998, they planned to get married, but Ms M. cancelled the wedding. Nevertheless, their relationship continued until the beginning of 1999. The applicant found out about Ms M.'s pregnancy in May 1999. According to the applicant, he and Ms M. agreed at that time that the applicant would take care of the child. Subsequently, the applicant inquired after Ms M. and her unborn child on a weekly basis, but was not able to contact her as from July 1999.
11.  Directly after birth on 25 August 1999, Ms M. gave Christofer for adoption. The Wittenberg Youth Office (Jugendamt), as Christofer's curator (Amtsvormund), immediately informed Mr and Ms B., who were registered as prospective adoptive parents and who had previously adopted a child, that Christofer had been given for adoption. They fetched Christofer from hospital four days later and took him home.
12.  In October 1999 the applicant heard about Christofer's birth and Ms M.'s giving the child for adoption. In November 1999, he went to the Leipzig Youth Office with the intention of adopting Christofer himself. Since Ms M. had not given any details regarding the paternity, the Youth Office refused to give the applicant any information regarding Christofer.
13.  On 30 November 1999 Ms M. accompanied the applicant to the Youth Office and confirmed that he was Christofer's father, whereupon the applicant obtained his son's birth certificate.
14.  On 12 January 2000 following an official acknowledgement of paternity and a request for custody rights on 10 January 2000, the applicant initiated paternity proceedings before the Wittenberg District Court.
15.  On 20 June 2000 after the applicant had acknowledged paternity a second time on 2 May 2000 and submitted to a medical blood analysis, the Wittenberg District Court confirmed that he was Christofer's father.
16.  Since December 1999 the applicant has been married under Islamic law to Ms C, a German national. He lives with his wife and one of her two children.
17.  On 10 January 2000 the applicant requested the Wittenberg District Court to transfer custody of Christofer to him.
18.  On 30 August 2000 the Wittenberg District Court appointed Ms F. as curator ad litem (Verfahrenspfleger) to represent Christofer's interests in the custody proceedings.
19.  During a hearing held on 25 September 2000 the District Court decided that a meeting between the applicant and Ms C. and Mr and Ms B. should be arranged and that first contacts between the applicant and Christofer should be planned and implemented. On 13 October 2000 the applicant and Ms C. met Mr and Ms B. Up to December, four meetings took place between the applicant and his son in the presence of Christofer's foster parents. Since December 2000 no more meetings have taken place since Christofer was ill and his foster parents considered such meetings to be too much of a burden for a young child.
20.  On 11 January 2001 the applicant lodged an application with the Wittenberg District Court in order to obtain access to his son. Ms F. was also appointed curator ad litem for the purposes of the access proceedings.
21.  On 8 February 2001 the Wittenberg District Court, by way of an interim measure, ordered that the applicant should have access to Christofer on six consecutive Saturdays for first one, later two, then three, and then eight hours.
22.  On 16 February 2001, following the Youth Office's appeal, the Naumburg Court of Appeal suspended the execution of the District Court's interim decision pending proceedings before it. The applicant was permitted to see Christofer once a month for two hours in the presence of Mr and Ms B. or a third person.
23.  On 9 March 2001 the Wittenberg District Court decided to transfer the sole custody of Christofer to the applicant pursuant to section 1672 (1) of the Civil Code (Bürgerliches Gesetzbuch). Based on Ms F.'s observations, on written submissions by and interviews with the parties as well as on a psychological report submitted by a certified pedagogue (pedagogic psychology) of the Sachsen-Anhalt Regional Youth Office (Landesjugendamt) dated 30 January 2001, the District Court was convinced that the applicant was willing and able to give Christofer a home and family and that granting the applicant sole custody was in the child's best interest. The District Court recalled that during the meetings between the applicant and Christofer, the child had shown no aversion towards the applicant and had not suffered any harm. Contacts between the applicant and Christofer in general therefore did not pose a threat to the child's well‑being. The District Court stated that such contacts could already have taken place much earlier if the competent authorities had not obstinately pursued the adoption proceedings, thereby preventing any contact between father and child. The District Court found that, should Christofer stay with his foster parents and later find out about his background, he risked being subjected to an identity conflict. Such a conflict would pose a greater threat to the child's well-being than separating him from his foster family after what might eventually amount to two years, in particular with regard to Christofer's stable state of mind. While noting that this decision on custody would not have any instant practical effects, in particular not on the rights of the foster parents, the District Court found it important to adapt Christofer quickly to the new situation. It considered it imperative that the meetings and contacts that had begun to take place in September 2000 should continue, in order to prevent a change of residence from becoming a sudden, incisive break in Christofer's life. It also found that if the child should move in with his father, he should continue to pay frequent visits to his foster family. In similar cases, such visits had led to positive results.
The District Court furthermore mentioned that the Youth Office was represented by the same lawyer who represented Christofer's foster parents in parallel proceedings.
24.  On 10 April 2001 the Naumburg Court of Appeal, upon the Youth Office's appeal and a second appeal lodged by Mr and Ms B., revoked the interim decision on access of 8 February 2001. It found that following the Wittenberg District Court's decision granting the applicant custody of Christofer, which included unlimited access, the object of the dispute had disappeared.
25.  On 27 April 2001 the Naumburg Court of Appeal, upon the Youth Office's appeal against the District Court's custody decision, decided to suspend the execution of the custody decision until it had decided on the appeal. It also discharged Ms F., Christofer's curator ad litem, finding that she had exceeded her authority and was no longer impartial. Ms E., a social worker, was appointed new curator ad litem.
26.  On 19 June 2001 the Wittenberg District Court, by way of an interim measure, granted the applicant access to his son on three days for two hours respectively and starting the end of June[1] 2001, on every Saturday for eight hours. It ordered Mr and Ms B. to co-operate and obliged them to find substitute dates for any cancelled meeting. As in the custody proceedings, Ms F. was discharged and Ms E. was appointed as new curator ad litem.
27.  On 20 June1 2001 the Naumburg Court of Appeal revoked the District Court's decision of 9 March 2001 and rejected the applicant's request for custody of Christofer. It also suspended the applicant's access to his son until 30 June 2002.
In its decision, the Court of Appeal found that transferring custody to him was not only not in the child's best interest, but even detrimental to his well-being. In this respect it had regard to the psychological report of the Sachsen-Anhalt Regional Youth Office, a medical report of a paediatrician dated 19 January 2001 and a report of Ms E. dated 6 June 2001 that it had previously ordered to examine the child's well-being and the housing facilities of both the applicant and the foster parents. It also relied on its own experience in such matters and on its knowledge of the facts.
The Court of Appeal considered that the applicant was in a position to care for Christofer. It noted that he was married to Ms C., a German national, who had already raised two children herself and who would support him. The applicant could also offer other objective assets for raising a child, i.e. a house with a separate room for Christofer. The Court of Appeal was also convinced that although he had never gone to school himself nor completed any higher education, the applicant was, with the assistance of Ms C., able to further Christofer's education.
However, separating the child from his foster family was not in Christofer's best interest, as a deep social and emotional bond had evolved between the child and his foster family. Christofer had lived with Mr and Ms B. for one year and ten months which, in the court's view, constituted an “infinite amount of time” (“einen unendlichen Zeitraum”) for a child of Christofer's age. In this situation, a separation from Mr and Ms B. would lead to severe and irreparable psychological damage for the child, especially as he had already experienced the separation from his natural mother, which in itself had been a traumatic event. It would be impossible to convey the necessity of a separation to such a young child, especially as the applicant was a stranger to Christofer.
The Court of Appeal regarded the above reports as sufficient to assess the case before it and therefore found that there was no need for further expert opinions, as there was no reason to expect that they would come to different conclusions in favour of the applicant. It found that any remaining doubts as to this point were to the applicant's detriment (“zu Lasten des Kindesvaters”).
Moreover, the Court of Appeal, based on the above-mentioned psychological report and the report of the curator, found that the suspension of access was in Christofer's best interest. Having regard to the unrest and insecurity occasioned by the unresolved legal dispute, any contact with his natural father would be a physical and psychological strain for the child. Suspending access for a certain time would allow Christofer to regain the necessary inner repose and emotional balance.
28.  On 31 July 2001 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint.
29.  Since then, the applicant has initiated new proceedings before the District Court requesting custody and access. On seven different occasions, the applicant attempted to contact Christofer, but these attempts remained unsuccessful due to the refusal to cooperate or absence of Mr and Ms B. Two hearings scheduled for February and July 2003 were cancelled. On 22 July 2003, the District Court appointed Ms E. as curator ad litem for both custody and access proceedings. On 28 October 2003 the Naumburg Court of Appeal dismissed the applicant's appeal.
On 30 September 2003 it rejected the applicant's request for an interim decision regarding the right to access due to the tense relationship between the applicant and the foster parents and the unclear legal situation. On 27 November 2003 a first hearing took place before the District Court.
30. On 19 January 2001 the Wittenberg District Court received Mr and Ms B.'s request for permission to adopt Christofer. The Wittenberg Youth Office, acting as Christofers legal representative, had previously given its consent to the adoption. On 28 December 2001, following the applicant's refusal to consent to the adoption of Christofer, the District Court decided to replace his missing consent by court order. On 30 October 2002 the Dessau Regional Court dismissed the applicant's request to stay the adoption proceedings pending the outcome of the custody and access proceedings. On 24 July 2003 the Naumburg Court of Appeal granted the applicant's appeal and revoked the Regional Court's decision. Although the Court of Appeal refused to suspend the adoption proceedings pending the proceedings before this Court, it noted that the competent domestic courts were bound to take into account a possible judgment of this Court.